CATCHING UP: Not so fast for Salango

By John O'Brien | Sep 26, 2006


CHARLESTON - Winning his client's case couldn't have been easier for Charleston attorney Benjamin Salango.

Earning any money for it, though, is proving much more difficult.

On Aug. 10, Salango was granted default judgment for Marlon Ferguson, a former doorman at Banana Joe's Island Party nightclub in downtown Charleston who now has a bullet lodged in his skull.

G&S Holdings, the defendant in the case, never filed a response to Ferguson's complaint, and Kanawha Circuit Judge Irene Berger grew tired of waiting and ordered the judgment in Salango's favor and a Nov. 20 damages trial.

"It's uncommon," said Salango, of Preston and Salango.

The company's insurance policy, however, does not cover Ferguson's injuries. Salango says the damages will have to come from another insurance policy that has yet to be discovered or G&S itself.

"The insurance company denied coverage," Salango said. "The policy seemed pretty clear. We're not going to fight that battle."

Ferguson said in a lawsuit filed June 6 that the nightclub should have known that its policy of using a chokehold on rowdy customers would lead to violence, calling it a "dangerous and improper practice."

On Oct. 30, he added, a customer who had been choked out and left on the street returned to the bar with a gun and fired three shots through the window, one of which struck him in the head.

G&S never responded to the lawsuit, leading to the default judgment, and on Sept. 19 one of the defense attorneys dropped out.

Stuart McMillan of Bowles, Rice, McDavid, Graff and Love says he was retained by Western Heritage to represent its interests in the lawsuit, but withdrew when the insurance company decided it had no obligation to cover Ferguson's injuries.

Part of the policy reads: "This insurance does not apply to an 'employee' of the insured, arising out of and in the course of: Employment by the insured; or performing duties related to the conduct of the insured's business."

Had a customer at the bar been hit with one of the bullets, he or she would have been insured under the terms of the policy, Salango said.

"We're not sure whether there is money available to cover the claim," he added. "I don't know whether G&S Holdings has any assets. My understanding is that they recently surrendered their license or is in the process of surrendering their license. I'm not sure what the status of that is."

Meanwhile, Ferguson's condition is inoperable because of where the bullet came to rest in his head, Salango said. Trying to remove it might leave severe damage on the nerve, which is currently causing him enough discomfort to warrant a pain-killer prescription.

Ferguson has only been able to return to work part-time. Brickstreet Insurance covered his Workers' Compensation claim, but he still may be out of luck on non-economic damages.

A surveillance tape shows a man being choked to the pavement outside of Banana Joe's and left laying there. It also shows what looks to be the same man returning later and firing a gun at the nightclub.

In the first five months of the year, police were called to Banana Joe's 51 times. The nightclub has also lost its liquor license because of the repeated trouble.

Ferguson's case wasn't Salango's only recent default judgment.

Holly Cross was awarded $225,000 from her lawsuit against Robert Scarberry, who she claims was drunk and caused an automobile accident between the two.

Cross was a newspaper carrier for the Charleston Daily Mail and claims the alleged accident cost her $11,000 in medical bills.

Salango said Scarberry's insurance provider, Viking Insurance, offered only $6,500 for a settlement. In the end, it paid almost 35 times that amount.

"We attempted to negotiate with the drunk driver's insurance company but it refused," Salango said. "They refused to provide a defense at the trial and the jury awarded a substantial verdict against him."

Judge James Stucky presided over the case.

Salango added that Scarberry escaped criminal prosecution for drunk driving. First, he says he fled the scene of the accident.

Then he says Scarberry returned but told police officers that he couldn't take a breathalyzer test because he was injured and having trouble breathing.

When ordered to go to the hospital for a blood test, Salango says Scarberry escaped the ambulance and never showed up.

"He beat the system," Salango said.

The following is a look at the recent movements of other cases that were filed in Kanawha Circuit Court this year:

Amanda Church v. West Virginia Regional Jail and Corrections Authority

PA-Michael Whitt; J-Bloom

Case number: 06-C-139

Judge Louis Bloom wants the two sides to agree on a schedule, and if they can not has arranged for a conference at 11 a.m. on Oct. 3 where a scheduling order will be hammered out.

Church sued the Regional Jail Authority and its employee Everette Marcum after she says she was forced to perform oral sex on Marcum while an inmate at Southwest Regional Jail near Logan.

"The sex act performed by the plaintiff at the direction of Defendant Marcum was an unprotected act of oral sex which resulted in the exchange of bodily fluids between plaintiff and Defendant Marcum," her complaint says.

Bloom dismissed the case against Marcum, though, on Aug. 23, claiming Church and her lawyers have not serviced the suit to him. Attorney Michael Whitt had asked for more time to provide service, but Bloom sided with Marcum.

Church's case against the Regional Jail Authority asserts that it did not provide protection from Marcum and covered up the alleged events.

Michael Olivio of Atkinson, Mohler and Polak is representing the Regional Jail Authority.


Judy Simms, Lois Kent and Julie Lawson v. Lennox International, Inc., et al.

PA-Michael D. Payne; J-Bloom

Case number: 06-C-1074

Lennox International filed its answer to the three women's complaint, claiming it isn't responsible for the alleged actions of a maintenance man.

The women say Justin Ferrari sexually harassed them individually as he moved from apartment to apartment in their building while fixing heating and cooling systems.

They sued Lennox International, Service Experts, Teays Valley Heating and Cooling and Ferrari.

The companies deny any blame, and Ferrari wrote in his Aug. 25 answer that, "In all respects, and in light of ongoing criminal proceedings against the defendant Justin Ferrari, the said Justin Ferrari invokes the Fifth Amendment of the Constitution of the United States and declines to answer any questions or make any responses in this action unless and until the criminal proceedings are terminated."

The 26-year-old Ferrari is charged with first-degree sexual assault and faces 1-5 years in prison if found guilty.

After she escaped one of his advances, Simms says in the complaint that Ferrari "did come up behind Ms. Simms, forcibly put her in a bear hug, forcibly did clutch her breasts and crotch and did forcibly rub his crotch into Ms. Simms' buttocks.

"Mr. Ferrari's penis was, in fact, erect."

Charleston attorney Michael Clifford is representing Ferrari. Judge Louis Bloom has ordered a May 7 trial.


Chad Auxier and Rachel Auxier, co-administrators of the Estate of Kari Beth Gordon, et al. v. Robert Berry, administrator of the Estate of David Gordon, et al.

PA-Joseph Price; J-Kaufman

Case number: 06-C-1087

Through attorney Timbera Wilcox of Dinsmore and Shohl, Berry claims the Estate of David Gordon should not have to pay anything to the Estate of Kari Beth Gordon.

Kari Beth was the victim in an alleged Jan. 14 murder-suicide in Marmet that left both she and David dead. Her children, as co-administrators of her Estate, are seeking $10 million.

"The action described in the complaint was a result of cause or causes over which this defendant had no control," Berry's answer says. "The injuries, if any, resulting from the occurrence upon which this complaint is based are the result of a pure accident and none of the parties acted intentionally or negligently.

"Therefore, no party can recover against the defendant."

Kari Beth Gordon was 42 years old and David was 57 when the alleged incident took place. The two co-owned Just Wee Kids Daycare in Marmet. Kari Beth was a DuPont High and University of Charleston graduate, while David was a marine in the Vietnam War.

Joseph M. Price of Robinson and McElwee in Charleston is representing the plaintiffs, who say the $10 million is compensation for "pain, suffering, loss of companionship, loss of love and affection, infliction of severe emotional distress and punitive damages."

It was reported that the two were arguing over an impending break-up, and David Gordon called Kari Beth's mother to inform her he had killed her daughter before turning the gun on himself.


T.A., individually and as parent and guardian of K.A., A.A. and J.B. v. Braxton County Board of Education, et al.

PA-Brett Preston

On July 28, the case was removed to federal court for the Southern District of West Virginia and is currently being presided over by Judge Joseph Goodwin.

The case stems from alleged sexual abuse that occurred on a Braxton County school bus.

T.A., who only uses her initials to hide the identities of her children, says her 3-year-old daughter was assaulted by a 7-year-old on the bus, and her other children, a 5- and a 14-year-old, have endured mental anguish because of the incident.

The bus was taking the 3-year-old home from the federally funded Head Start Program and also lists the state's board of education as a defendant.

On Aug. 18, Goodwin granted the plaintiff's motion to stay ruling on the defendants' motion to dismiss and motion for extension of time to respond to motions.

The defendants' motion to dismiss will be decided on after there is a ruling on the plaintiffs' motion to remand the case back to Kanawha Circuit Court, where it was originally assigned to Judge Charlie King.

K.C. v. West Virginia Higher Education Policy Commission, et al.

PA-Mary Downey; J-Walker

Case number 06-C-1123

After the HEPC filed a motion to dismiss the case of an allegedly sexually abused Marshall University cheerleader, Charleston attorney Mary Downey responded by reiterating the commission's position in her case.

"Defendants assert that unless the HEPC is specifically assigned a governance function, it has no duty or responsibility to implement any particular activities at any institution of higher education and therefore their motion to dismiss HEPC should be granted," the response says.

"Contrary to Defendants' assertion, HEPC is assigned governance functions and responsibilities at Marshall University."

Downey says the HEPC is required to ensure that the governing board at Marshall carries out its duties effectively and therefore is responsible for the general control, supervision and management of the school's affairs.

Marshall's Board of Governors and cheerleading coach Donna Dunn are also listed as defendants in the suit. The defendants say that if their motions to dismiss are not granted, the case should be sent to Cabell Circuit Court.

Downey has responded by saying that because the defendants are charged with violating the Human Rights Act, she is permitted to file her suit in any county they conduct business in.

"The defendants plainly do business in Kanawha County through the operation of the Marshall University Graduate School of Education and Professional Development in South Charleston," she says.

A former cheerleader who identifies herself only as "K.C." filed the lawsuit June, claiming she was sexually harassed during her one year as a Thundering Herd cheerleader.

In the complaint, she claims male members of the squad exposed themselves, rubbed their genitals on the female members' faces and called the females "bitches, whores" and other derogatory names, including one typically used to refer to female genitalia.

She adds that several cheers had code names of a sexual nature, and that longtime coach Dunn was partly to blame. She says Dunn even instructed the girls to act in a sexually provocative manner at a golf fundraiser


Charles Burkhamer v. Robert Ore, individually and in his capacity as Mayor of the Town of Clendenin, et al.

PA-Henry Wood III; J-Bloom

Case number: 06-C-1176

The case of the fired Clendenin police officer had a two-month stay in federal court for the Southern district of West Virginia before it was remanded back to Kanawha Circuit Court, where it falls under Judge Louis Bloom's control.

Charles Burkhamer filed a lawsuit June 19 in Kanawha Circuit Court against Robert Ore, the Mayor Clendenin, alleging that he was fired in retaliation for filing a complaint with Kanawha County magistrate that led to Ore turning himself in to police.

Burkhamer had previously tried to determine that his firing was outside Ore's authority, but Kanawha Circuit Court Judge Tod Kaufman determined that state law gives a mayor control of his town's police department.

After trying to settle the dispute without litigation, Burkhamer is now pursuing a different avenue. Judge Louis Bloom has been assigned this case.

Burkhamer's complaint in Kanawha Magistrate Court says he was attempting to execute an arrest warrant on Clendenin residents Terry Peck and Misti Sexton at 11:30 p.m. on April 20 when Peck answered her door and handed him a phone.

On the other end was Ore, who told him that he did not approve of serving warrants so late at night and instructed him not to arrest the couple.

Burkhamer filed his complaint Magistrate Court June 5, claiming Ore was guilty of obstruction. Ore learned of a warrant that was drawn up and turned himself in.

Burkhamer's civil complaint says he was wrongfully fired later that day by Ore.

The defense says that because Kaufman already ruled on the matter that the lawsuit should be dismissed. Karen Tracy McElhinny of Charleston's Schuman, McCuskey and Slicer is representing Ore.

In federal court, Judge David Faber decided the issue was created by state law and that the claim did not depend upon a substantial question of federal law, which led to him remanding the case to Kanawha Circuit Court.

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